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June 20, 1952

Hon. George M. Kelton OpinionNO. V-1468 County Attorney. Ector County Re: Authority of the CommisOdessa,Texas sioners'Court to issue bonds and levy and collect taxes to build a livestockand mineral products exhibit building on a tract of land which is subject to a Dear Sir: mineral lease.

Your request for an opinion of this office reads in part as follows:

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. . . your office is respectfullyrequested to furnish an opinion as to whether or not the Commissioners'Court of~Ector County, Texas, is authorized to issue negotiable bonds of the County and~to levy and collect taxes in payment thereof for the purpose of building a permanentbuilding to be used f~orlive stock.andmineral products exhibits, on a loo-acre tract of landwhich said land is subject to an oil and gas lease."

Itwas held in.Adamsv. McGill, 146 S.W. 2d 332 (Tex.Civ. App. 1940, error ref.) that counties could build such buildingsunder the &ovisions of Article 2372d,V.C.S.~, but had no authority to issue bonds for this purpose. Article 2372d-2,V.C.S., was subsequentlyenac~ted in order that the.construction of thesebuildings might be accomplished through the issuance of bonds. Att'y. Gen. Op. v-962 (1949). Therefore, if the commissioners'courthas authority to construct the building it has equal authority to issue bonds and levy taxes for this purpose, assuming, of course, that the taxes leviedwill not increase the tax rate for permanent improvementsto an amountwhich exceeds that establishedunder Section 9 of ArticleVIII of the Constitution of Texas.Hon. George Me Kelton, page 2 (v-1468) ._

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The only question for determinationis whether the existence of the oil and gas leasewill prohibit the commissioners'court from constructing the building in question.

In Brazes River ConservationReclamation District v. Adkisson, 173 S.W.2d 294, 298 (Tex.Civ, App. 1943, error ref.), it is stated:

"An oil and gas lease carrieswith it the right to possession of the surface to the extent reasonaibly necessary to enable the lessee to perform the obligations imposed upon him by the lease."

854,

that In Grubstake Inv.Ass'n. v. Coyle; 269 S.W. 855 (Tex.Civ. App. 1925, error dism.), it is stated:
ltIn the constructionof an oil lease contract.suchas this, it must be construedmost strongly against the lessee, for he is contracting only for the right to bore for minerals beneath the surface of the earth. He acquires no title to the surface, or any other right, except for the sole purpose; that is, a use and easement of the surface. Since that is the case, in a controversy such as this, the lessor retains and has partedwith no surface rights to the use of the land for any purposes save the mineral rights, and what incidentally and contractuallygoes with that right. The contract gives 'theright of ingress and egress at all times for the purpose of drilling and mining and operating for oil and gas and other minerals, and he shallhave the exclusive right to drillwell, lay pipe lines, build tanks, and other structures.' These rights are sec'ure and prior to any right of appellees. 0oD

"Itwas a question of fact as to whether the occupancyby appellees of the smallpart of the 20-acre lease did interferewith the reasonable use in the development of appellanks'oil and mineral use under the surface. a**
Based on the above authorities it becomes obvious
an answer to your questionpresents one of factwhich

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this office can neither pass upon or answer categorically... Hon. George M. Kelton, page 3 (v-1468)

If, however, the aonstruction.ofthe buildingwill not interferewith the rights of the lesseeUnder the provisions of the oil and gas lease and further if the operations under the provisions ,ofthe oil and gas leasewill not prevent the use of,the building for the purpose of exhibiting livestockand mineral products, it is our opinion that the commissioners'court of Ector County may issue bonds and levy and collect taxes for the purpose of building a permanentbuilding to be used for this purpose,

This opinion is limited to oil and gas leases generally and does not purport to pass upon any specific provisions or reservationswhich may appear in the lease in question sincewe have not been furnishedwith a copy thereof. In this connection,as a matter of practical relationswith the lessee, itwould probablybe wise for the commissioners'court to advise the lessee of its plans.

SUMMARY
The Commissioners'Court of Ector County is authorized to build a livestockand mineral products exhibit building on a tract of land owned by the countywhich is subject to a mineral lease if the constructionof the buildingwill not Interferewith the rights of the lesseeunder the provisions of the lease and if the operationsunder the oil Andy gas lease will not prevent the use of the building for the purpose of exhibiting, llvestockand mineral products. Under Section 2 of Article 2372d-2, V.C.S., the countymay issue bonds for this purpose.

Yours very truly,

APPROVED:

J. C. Davis, Jr. County Affairs Division PRICE DANIEL Attorney General

Mary K. Wall Reviewing Assistant
Charles D. Mathews First Assistant

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